Oct 05, 2016
By elder lawyer Rick Law, founder of the multi-generation law firm of the Estate Planning Center at Law Elder Law in Western Chicagoland in Illinois. Serving seniors and their families in Kane, Kendall, Will. DuPage, Cook and other Illinois counties.
Many states have passed legislation that has greatly expanded the definition of elder abuse…
Family members who take on the role of caregiver may find themselves within the definition of people who have heightened duties relative to their loved one. Neglect of those duties can lead to both civil and criminal liability. Illinois passed an anti-elder abuse power of attorney law that went into effect July 1, 2012, which creates a presumption that if people who are agents are writing checks to themselves, that is per se abuse of the principal, the parent.
This presumption can be rebutted with the existence of a written agreement that stipulates clear terms and conditions that justify payments from the principal to the agent.
A properly drafted personal-care agreement is required as the foundational document to rebut accusations of elder abuse within the familial-care arrangement. Proper and timely bookkeeping is also required—and unfortunately is the Achilles’ heel of many of these contracts.
Eventually the parents may need a higher level of care than their child can provide. When one or both of them go to a nursing home and then apply for Medicaid, all those checks written by the child on the parents’ account will be scrutinized and audited by the state. If there was no personal-care contract in place between the parents and the child clearly describing the care to be provided and the compensation to be paid, many states will consider the transfers as non-allowable. A nonallowable transfer will create a penalty period of ineligibility for nursing home Medicaid benefits for the affected loved one.
Your elder lawyer can provide appropriate written advice and counsel to the client so as to avoid being liable for creating a personal-care agreement relationship that led to a denial of nursing home Medicaid benefits.
For example, the current Code of Illinois Rules state that care provided to a senior by a friend or family member is presumed to be “gratuitous.” The rules further state that “transfers for love and affection are not considered transfers for fair market value and thus are nonallowable and subject to penalty periods.” This can make it difficult in cases where a family member has been caring for a senior and not charging for the care or not keeping adequate records.
If your loved one has memory problems and you’re afraid of the consequences that may bring, give our office a call today at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now.
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick has been named the #1 Illinois elder law estate planning attorney for the past 8 years in a row by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care. Call 800-310-3100 for your free consultation now!
“We would be lost without Law Elder Law! We walked in their doors over a year ago feeling lost and confused. With a father/father-in-law suffering from Alzheimer’s, we were overwhelmed by the Medicaid process, selling his home, protecting the assets he worked for his entire life, and finding him a memory-care facility that we could trust as his new home.
Law Elder Law helped with all of it! From the minute we walked out of our first meeting, we knew we (and he) were in good hands. We could not have possibly navigated all that had to be done without their expertise.”
A.M., Client of Law Hesselbaum and Law Elder Law